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Monday, May 01, 2017

Congress: Step Away from the Class Action!

My previous posts noted that, for libertarians, there is no simple algorithm for fixing the class action. Despite this, there is a once-a-decade push from right-of-center think tanks for a congressional class action “fix.”

The problem with this, I’ve suggested, is that congressional legislation in this area tends toward crude categorization and simple algorithms. First, the intensity of interest group attention to class actions tends to push reform in directions that serve blunt private interests of portions of the practicing bar, at the expense of more complex public values. Second, class action reform has long been an important battleground for partisan identity signaling—one does not get on the good side of the base of either party by arguing for a nuanced treatment of class litigation (although, as Adam Zimmerman highlighted in a comment, there are signs this may be changing).

Both problems explain Congress’s tendency, evident in features of the Fairness in Class Action Litigation Act, to take some arguably useful refinements of the class action law in the private market class action and reflexively extend them to public rights litigation, where those refinements may do more harm than good.

That’s why I tend to agree with Myriam Gilles that it is better to leave reform of certification standards, at least in the near term, to the Court, which is much better adapted than contemporary Congresses to make the often nuanced institutional judgments that certification doctrine demands. Libertarians and progressives may not agree on every feature of class action reform, but they ought, I would argue, to agree on that much.

It’s a position, by the way, I’ve come to reluctantly: I’ve argued elsewhere that separation of powers principles favor a more robust role for congressional oversight of the class action.

But I’ve also come to appreciate that the Court can capture some of the benefits of functional political branch oversight in the class action area by replicating that oversight “in house,” through a system of intrabranch or “internal” separation of powers. This is something I explore, by the way, in this new draft piece.

Anyway, thanks to Howard and Prawfs for having me—and apologies to the Prawfs management for infrequent posts. I’ve been pulled in ten different directions this month at my home institution, making this a much busier April here in Chicago than I expected!